Faithful Execution and Article II

Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2019 Faithful Execution and Article II Andrew Kent Ethan J. Leib Jed Shugerman Follow this and additional works at: https://ir.lawnet.fordham.edu/faculty_scholarship Part of the Law Commons VOLUME 132 JUNE 2019 NUMBER 8 © 2019 by The Harvard Law Review Association ARTICLE FAITHFUL EXECUTION AND ARTICLE II Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman CONTENTS INTRODUCTION .......................................................................................................................... 2113 I. FAITHFUL EXECUTION IN 1787–1788: EVIDENCE FROM THE CONVENTION, RATIFICATION, AND LINGUISTIC USAGE..................................................................... 2121 A. The Philadelphia Convention ........................................................................................ 2121 B. Ratification Debates ....................................................................................................... 2128 C. Linguistic Usage .............................................................................................................. 2132 D. The Other Components of the Clauses.......................................................................... 2134 1. “Take Care” ................................................................................................................. 2134 2. “[T]he Laws” .............................................................................................................. 2136 3. “Preserve, Protect and Defend” ............................................................................... 2137 II. FAITHFUL EXECUTION FROM MAGNA CARTA TO THE U.S. CONSTITUTION ...... 2141 A. The Medieval Period and the Multiplicity of Oaths .................................................. 2141 B. The Early Modern Era, the Tudors, and More Specification of Faithful Execution ... 2146 C. Faithful Execution and Oaths of Office in the Tumultuous Seventeenth Century ..... 2149 1. Within the Realm ...................................................................................................... 2149 2. The Early Settlements of American Colonies ........................................................ 2159 D. Mature Governments in Colonial America .................................................................. 2163 1. Governors .................................................................................................................... 2163 2. Officers of Chartered Corporations.......................................................................... 2164 3. Other Colonial Public Officials ................................................................................ 2165 4. Summing Up ............................................................................................................... 2169 E. The Revolution and the Critical Period ...................................................................... 2172 1. Chief Magistrates of the Newly Independent States ............................................. 2173 2. Executive Offices Created by the Continental Congress ...................................... 2176 III. WHAT IT ALL MEANS: A FIDUCIARY THEORY OF ARTICLE II ............................. 2178 A. Ultra Vires Restrictions and Legislative Supremacy .................................................. 2181 B. The President’s Duty of Loyalty Against Self-Dealing ............................................... 2188 C. The President’s Affirmative Obligation of Diligence .................................................. 2190 CONCLUSION ............................................................................................................................... 2191 2111 FAITHFUL EXECUTION AND ARTICLE II Andrew Kent,∗ Ethan J. Leib∗∗ & Jed Handelsman Shugerman∗∗∗ Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed” and take an oath or affirmation to “faithfully execute the Office of President.” These Faithful Execution Clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons. This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up through the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices — especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but to a vast number of more ministerial officers, too. We contend that it imposed three interrelated requirements on officeholders: (1) a duty not to act ultra vires, beyond the scope of one’s office; (2) a duty not to misuse an office’s funds or take unauthorized profits; and (3) diligent, careful, good faith, honest, and impartial execution of law or office. These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution, for example, that limit Presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. So understood, Article II may thus place some limits on the pardon and removal authority. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes, and perhaps constraining agencies’ interpretations of statutes to pursue Congress’s objectives. Our conclusions undermine imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring the President’s faithful execution. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Professor of Law, Fordham University School of Law. ∗∗ John D. Calamari Distinguished Professor of Law, Fordham University School of Law. ∗∗∗ Professor of Law, Fordham University School of Law. This article benefitted greatly from presentations at the Columbia Law School Legal History Workshop, NYU School of Law Legal History Colloquium, Originalism Works-in-Progress Conference at the University of San Diego School of Law, National Conference of Constitutional Law Scholars at the University of Arizona Law School, Georgetown Advanced Constitutional Law Seminar, and faculty workshops at Fordham and the University of Pennsylvania Law School/Wharton Legal Studies Department. Thanks to the organizers and participants in those conferences and workshops. For helpful comments and discussions, thanks also to Nestor Davidson, Martin Flaherty, Jonathan Gienapp, David Golove, Philip Hamburger, John Harrison, Daniel Hulsebosch, Aziz Huq, Sophia Lee, Thomas Lee, Serena Mayeri, Michael McConnell, Bernadette Meyler, John Mikhail, Julian Mortenson, William Nelson, Victoria Nourse, Richard Primus, Michael Rappaport, Stephen Sachs, Matthew Stephenson, and William Treanor. We also thank John Shaw and Fordham librarians Janet Kearney and Gail McDonald for their research assistance. 2112 2019] FAITHFUL EXECUTION AND ARTICLE II 2113 INTRODUCTION he faithfulness of a President to the Constitution, the laws, and the Tideals and traditions of the United States is at issue as never before. The American people today are confronted with questions that go to the foundations of our constitutional system as a “government of laws, and not of men”1 (or women). Presidential powers previously understood as plenary are being used in ways that many see as destructive of constitutional principles and norms. May a President fire senior law enforcement personnel, if the purpose is to protect himself or close associates from a criminal investigation? May a President use the pardon power or his control over classification and declassification of information for the same purposes? Does the Constitution have a plan for when it appears that a President may be motivated not by a view of the public good but by self-regarding or bad faith purposes? We think that two frequently cited but poorly understood parts of the Constitution speak to these questions. Article II of the U.S. Constitution twice imposes a duty of faithful execution on the President, who must “take Care that the Laws be faithfully executed”2 and take an oath or affirmation to “faithfully execute the Office of President.”3 Although other public servants are “bound by Oath or Affirmation[] to support [the] Constitution,”4 no other officeholder has the same constitutional command of fidelity. And the language of faith appears nowhere else in the document, save the requirement that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of

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